The Common Fisheries Policy and Points System

Introduction

The Irish seabed area has sovereign or exclusive rights over 200 million acres under the sea, one of the largest in Europe. Further to this the Irish maritime economy is growing nearly twice as fast as the overall economy. The maritime economy grew by 9% between 2010 to 2012, by over 8% from 2012 to 2014, and by a further 20% between 2014 and 2016. Ireland’s marine economy had a turnover of €5.7 billion in 2016 with a direct economic value of €1.8 billion which accounts for approximately 0.9% of the gross domestic product (GDP). Fishing is a key component to this marine economy.

Main Objective of the CFP

The objective of the CFP is to ensure the needs of today's EU fishing industry are met without jeopardising fish stocks for future generations. This policy was introduced back in the 1970's and has undergone numerous periodic changes with the most recent update taking effect on 1st January 2014 under Regulation (EU) No 1380/2013 on the CFP. The CFP is being delivered with the help of a €6.4 billion European Maritime and Fisheries Fund (EMFF) covering the period from 2014 up to 2020.

The four main policy areas covered by the CFP are the following:

• Fisheries Management
• Market and trade policy
• Funding of the policy
• International policy

The CFP planned a control system to enforce its rules as follows:

• Clarify the roles of EU countries and the Commission.
• Ensure the rules are applied consistently to all fishers with the same sanctions across the EU.
• Ensure that the correct quota of fish are caught to allow for maximum sustainable yield.
• Phasing out of discarding of fish.
• Ensure traceability of fish products and checked throughout food chain, from net to plate.
• Ensure Member States have their fleet capacity in balance with the fishing opportunities.
• Right for Member States to restrict fishing a zone within 12 nautical miles of coastline to help secure the aqua eco-system.
• Manage and obtain necessary data for fishing opportunities.

Control Regulation

on the 20th November 2009 Council Regulation (EC) No 1224/2009 as amended by Commission Implementing Regulation (EU) 2015/1962 established an EU system for inspection, control and enforcement to ensure compliance with all the rules of the CFP (the “Control Regulation”).

The Control Regulation provides that sanctions should be complemented by a point system for serious infringements on the basis that a fishing licence should be suspended if a certain number of points have been attributed to the holder of a fishing licence following the enforcement of sanctions for serious infringements.

Article 42(1)(a) of Regulation (EC) No 1005/2008 states that a serious infringement means:

“the activities considered to constitute illegal, unreported and unregulated fishing “(IUU”) in accordance with the criteria set out in Article 3.”

Article 3 of that 2008 Regulation states:

1. A fishing vessel shall be presumed to be engaged in IUU fishing if it is shown that, contrary to the conservation and management measures applicable in the fishing area concerned, it has: 

(a) fished without a valid licence, authorisation or permit issued by the flag State or the relevant coastal State; or

(b) not fulfilled its obligations to record and report catch or catch related data, including data to be transmitted by satellite vessel monitoring system, or prior notices under Article 6; or

(c) fished in a closed area, during a closed season, without or after attainment of a quota or beyond a closed depth; or

(d) engaged in directed fishing for a stock which is subject to a moratorium or for which fishing is prohibited; or

(e) used prohibited or non-compliant fishing gear; or

(f) falsified or concealed its markings, identity or registration; or

(g) concealed, tampered with or disposed of evidence relating to an investigation; or

(h) obstructed the work of officials in the exercise of their duties in inspecting for compliance with the applicable conservation and management measures; or the work of observers in the exercise of their duties of observing compliance with the applicable Community roles; or

(I) taken on board, transhipped or landed undersized fish in contravention of the legislation in force; or

(j) transhipped or participated in joint fishing operations with, supported or re-supplied other fishing vessels identified as having engaged IUU fishing under this Regulation, in particular those included in the Community IUU vessel list or in the IUU vessel list of a regional fisheries management organisation; or

(k) carried out fishing activities in the area of a regional fisheries management organisation in a manner inconsistent with or in contravention of the conservation and management measures of that organisation and is flagged to a State not party to that organisation, or not cooperating with that organisation as established by that organisation; or

(l) no nationality and is therefore a stateless vessel, in accordance with international law;

Further to Article 42 of Regulation (EC) No 1005/2008, Article 90 of the Control Regulation states that the following activities can also be considered serious infringements:

(a) the non-transmission of a landing declaration or a sales note when the landing of the catch has taken place in the port of a third country; 

(b) the manipulation of an engine with the aim of increasing its power beyond the maximum continuous engine power according to the engine certificate; 

(c) the failure to land any species subject to a quote caught during a fishing operation, unless such landing would be contrary to obligations provided for in the rules of the CFP in fisheries or fishing zones where such rules apply.

The gravity of the infringement is determined by the competent authority of the Member State, who will consider the value of the damage, its nature and the economic situation of the offender and the extent of its repetition and violation:

Article 92 of the Control Regulation – A Point System for Serious Infringements

Article 92 of the Control Regulation introduced a points system for Serious Infringements. The point system for work in the same way as the system for traffic offences familiar to motorists in most Member States. The basis of this is a holder of a fishing licence is will receive an appropriate number of pints as a result of an infringement of the rules of the CFP. The number of points to be given is specific to certain infringements. The number of points will be attributed to the offender on the national registry of the flag Member State, once a serious infringement is committed.Further to this if an infringement is carried out in another Member State, the flag Member State will be notified.

The period of three years from the date of the serious infringement is the time the points remain on the licence. After this time the points will be deleted from the fishing licence. However, if the holder of a fishing licence exceeds the number of points, the fishing licence will be automatically suspended for a minimum period of 2 months. If the offences are repeat offences, the penalty increases to four months for a second time, eight months for a third time and twelve months for a fourth time. Further to this, if the holder of a fishing licence incurs the specific number of points for a fifth time , the fishing licence will be permanently withdrawn.

Enforcement of Point System for Serious Infringements

This is governed by the Commission Implementing Regulation (EU) No 404/2011 under the following Articles -

• Article 125 – Setting up and operation of a point system for serious infringements;
• Article 126 – Assignation of points;
• Article 127 – Notification of decisions;
• Article 128 – Transfer of ownership;
• Article 129 – Suspension and permanent withdrawal of fishing licence;
• Article 130 – Follow-up of suspension and permanent withdrawal of fishing licence;
• Article 131 – Deletion of fishing licence from relevant lists;
• Article 132 – Illegal fishing during the suspension period or after the permanent withdrawal of a fishing licence;
• Article 133 – Deletion of points;
• Article 134 – Point system for masters of fishing vessels.

Assignation of Points

The following are a few examples of how the points will be assigned to each serious infringement:

• Not fulfilling or obligations to record and report catch or catch related data, including data to be transmitted by satellite vessel monitoring system – 3 points;
• Use of prohibited or non-compliant gear according to Union legislation – 4 points;
• Falsification or concealing of markings, identity or registration – 5 points;
• Fishing in a closed area or during a closed season, without or after attainment or a quote or beyond a closed depth – 6 points;
• Fishing without a valid licence, authorisation or permit issued by the flag State or the relevant coastal State – 7 points;
• Use of a fishing vessel with non nationality and that is therefore a stateless vessel in accordance with international law – 12 points.

Competent Authorities

In Ireland the Sea Fisheries Protection Authority (the “SFPA”) is the relevant authority for setting up the point system and assigning points for serious infringements. Also the SFPA is responsible for establishing the “Determination Panel” for determining whether an infringement has occurred and whether or not the infringement is of a serious nature.

“The Determination Panel” consists of 3 members who are appointed by the SFPA, one panel member being a member of the SFPA. A decision of “the Determination Panel” is by a simple majority.

The Licensing Authority (the Registrar General of Fishing Boats who is currently Kevin Moriarty) is responsible for the licensing and registration system including keeping relevant records of assigned points and ensuring points are transferred if vessels are sold.

Notification of a Serious Infringement to the SFPA

Statutory Instrument No.125/2016 implemented into Irish Law the European Union (Common Fisheries Policy) (Point System) Regulations 2016 (the “2016 Regulations”).Regulation 6 of the 2016 Regulations states the following;

"6 (1) Where a sea-fisheries protection officer detects an alleged infringement –

a. involving an Irish sea-fishing boat, wherever the boat may be, or

b. involving a foreign fishing vessel, in the exclusive fishery limits of the State (within the meaning of section 88 of the Act or 2006)

he or she shall forward an inspection report to the SFPA.

(2) A report, prepared or material collected by a sea-fisheries protection officer in the exercise of his or her powers under section 17 or 18 of the Act of 2006 may be used the Determination Panel in determining whether a serious infringement has been committed for which points should be proposed under the Regulation.

(3) The SFPA may issue guidance notes, which shall be published on its website on the internet, for the purposes of providing practical guidance in identifying the criteria, for the purposes of these Regulations, the Control Regulation and the Commission Regulation employed in determining whether an infringement is a serious infringement.

(4) The SFPA shall send the matter to the Determination Panel to determine if an infringement has occurred and whether the infringement detected is serious.

(5) The SFPA, on receipt of an inspection report mentioned in paragraph (1) citing infringement, shall notify the licence holder that-

(a) an infringement has been detected,

(b) the matter shall be sent to the Determination Panel to determine if an infringement has occurred and whether the infringement detected is serious, and

(c) the holder of a licence shall be provided with the material referred to in Regulation 6."

The Determination Panel must make their decision within 35 working days from the date of notification to the licence holder. The Determination Panel make their decision based on the balance of probabilities if an infringement has occurred and whether the infringement is a serious infringement.

Further to this, the Determination Panel must also have regard to the criteria set out in Article 3(2) of the IUU Regulation and Article 90 of the Council Regulation, and guidance notes published by the SFPA, from time to time, under paragraph 3.

Finally the Determination Panel must provide reasons for their determination.

Proposal to Assign Points by the SFPA

Under Regulation 7 of the 2016 Regulations, if the Determination Panel determines that a serious infringement has occurred, the SFPA shall-

(a) in case the vessel is an Irish sea-fishing boat -

(i) propose to assign the appropriate points to the holder of the Irish licence relating to the boat concerned for the serious infringement,

(ii) notify the holder of the Irish licence of the proposal to assign points, and

(iii) notify the holder of the Irish licence of the reasons of the determination, or

(b) in case the vessel is a foreign fishing vessel –

(i) notify the holder of the foreign licence relating to the vessel or, where the holder is not contactable, the master of the vessel, of the proposal to notify the flag Member State concerned of the detection of the serious infringement, and 

(ii) the reasons for the determination.

A notification to the holder of a fishing licence or the master of a foreign fishing vessel must give particualrs of the infringement and the appropriate number of points proposed to be assigned, and inform the holder of his or her option to refer the determination of the Determination Panel to the Fisheries Adjudicator. In the event that neither the holder of the foreign licence relating to the vessel nor the master of the vessel is contactable, then the competent authority of the flag Member State udner Article 125 of the Commission Regulation shall be notifed.

The assignment of points are only allowed after the period to refer the matter to the Fisheries Adjudicator has expired.

Appointment of a Fisheries Adjudicator

Under Regulation 11 of the 2016 Regulations, the Minister for Agriculture, Food and the Marine is required to appoint a Fisheries Adjudicator to consider referrals under Regulation 12.This adjudicator must be one or more persons who is a practising barrister or solicitor of not less than 5 years.

The Fisheries Adjudicator shall hold office for a term of 3 years and can be eligible for re-appointment. He/she must be independent in the performance of his or her functions, and is to be paid such remuneration, and allowances for expenses, as the Minister may, with the consent of the Minister for Public Expenditure and Reform, determine from time to time.

The referral to the Fisheries Adjudicator must be made, not later than 20 working days from the date of the notification of the determination of the Determination Panel.

A referral under this Regulation is made by the Irish fishing licence holder or a foreign fishing licence holder.

The referral must –

• Be made in writing,
• Be accompanied by a statement of grounds relied on by the holder of the licence, and
• Be accompanied by such fee as may be determined by the Minister.

On receipt of the referral the Fisheries Adjudicator can at his/her discretion, decide whether or not to conduct an oral hearing for the purposes of the adjudication.

Decision of the Fisheries Adjudicator

Regulation 12(6) states –

"The Fisheries Adjudicator may –

(a) Confirm that the points shall be assigned to the holder of the Irish licence or that notification be made to the flag Member State concerned, as the case may be, or

(b) Find in favour of the holder of the licence, in which event -

(i) In the case of an Irish sea-fishing boat, the points shall not be assigned and a notification under Regulation 7(4) shall not be made, or

(ii) In the case of a foreign fishing vessel, a notification under Regulation 7(5) shall not be made.”

Further to this Regulation 12(7) provides –

“The Fisheries Adjudicator may only find in favour of the holder of the licence where on the balance of probabilities, he or she considers that the alleged serious infringement in respect of which points have been assigned –

a. Did not occur,

b. Occurred before the commencement of these Regulations,

c. Involved an infringement that was not serious, or

d. Did not involve the fishing vessel concerned.”

The Fisheries Adjudicator shall make a decision within 30 days from the receipt of the referral. However under Regulation 12(10), in exceptional circumstances the adjudicator may get an extension of up to 15 days in addition to the 30 days.

A referral in relation to the decision made by the Fisheries Adjudicator can be made to the High Court but on a point of law only. Such a referral must be made within 14 days from the date notification of the decision of the Fisheries Adjudicator was made to the parties.